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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 September 2007
DOUGLAS RAY CALHOUN,
No. 98 CVD 13218
TINA CHERYL GOLIAN,
Appeal by defendant from orders entered 23 September 2005 and
12 July 2006 by Judge Donna S. Stroud in Wake County District
Court. Heard in the Court of Appeals 20 August 2007.
Sandlin & Davidian, P.A., by Deborah Sandlin, for plaintiff
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
Defendant appeals orders entered modifying a custody order
denying defendant's motion for relief. We affirm.
Douglas Ray Calhoun (Douglas) and Tina Cheryl Golian
(Tina) were married on 30 April 1995 and physically separated on
23 June 1999. The parties divorced in December 2000. There was
one child born of their marriage, Ryan Christopher Calhoun
(Ryan). After a trial in September 1999, Tina was awarded the
primary care and custody of Ryan in an order entered on or about 6
January 2000 (the 2000 order). The custodial schedule generallyprovided that Ryan would reside with Tina during the school year
and with Douglas during the summers. Douglas was also awarded
visitation every other weekend, every other Wednesday overnight,
and every other Wednesday for the evening during the school year.
At the time of the 2000 hearing, Tina was employed full time.
Tina subsequently met her husband, Bob Golian, (Mr. Golian) in
March 2002, and they were wed later in the year. Mr. Golian
encouraged his wife to become a stay-at-home mom, and Tina agreed.
Tina sold a consulting business she owned in April 2003, and has
been a stay-at-home mom since that time.
On 30 April 2004, Mr. Golian was terminated by his employer.
He began searching for new employment, and he received one job
offer from an employer in Minnesota. Mr. Golian began working for
his new employer in Minnesota on 16 December 2004.
Tina filed a motion to modify custody on 23 December 2004.
Douglas sought a temporary restraining order preventing Tina from
taking Ryan to Minnesota. Douglas filed a reply to Tina's motion
and also filed his own motion to modify custody on 12 January 2005.
The trial court entered an order modifying the court's prior order
of custody to grant Douglas primary physical custody of Ryan. Tina
moved for relief from this order on 26 October 2005. The trial
court denied Tina's motion. Tina appeals both orders.
Tina contends the trial court's conclusion of law that there
was a substantial change of circumstances warranting a modificationof custody is not supported by the trial court's findings of fact.
The party moving for modification of an existing custody
order must show there has been a substantial change in
circumstances affecting the welfare of the child. Scott v. Scott,
157 N.C. App. 382, 385, 579 S.E.2d 431, 433 (2003). 'If a
substantial change in circumstances is shown, [then] the trial
court must consider whether modification of the custody order would
be in the best interest of the child.' Id. at 385, 579 S.E.2d at
434 (citation omitted). In child custody cases, the trial court
has broad discretion, and it will not be upset absent a clear
showing of an abuse of that discretion. Id. at 385, 579 S.E.2d at
433. However, the trial court's findings of fact must be
supported by substantial evidence, and its conclusions of law are
reviewable de novo. Id.
Here, we determine the trial court did not err. First, Tina
argues, citing Ramirez-Barker v. Barker, 107 N.C. App. 71, 418
S.E.2d 675 (1992), that Douglas must show that Tina's relocation is
detrimental to Ryan before the legal test of a substantial change
of circumstances is met. However, the North Carolina Supreme Court
disapproved of Ramirez-Barker in Pulliam v. Smith, 348 N.C. 616,
620, 501 S.E.2d 898, 900 (1998). The Court stated:
[t]he Court of Appeals' decision . . .
insofar as it mandates that the changed
circumstances analysis be limited to a showing
of adverse effects on the child, is contrary
to N.C.G.S. § 50-13.7(b) and is disapproved.
We emphasize that an adverse effect upon
a child as the result of a change in
circumstances is and remains an acceptable
factor for the courts to consider and will
support a modification of a prior custody
order. However, a showing of a change in
circumstances that is, or is likely to be,
beneficial to the child may also warrant a
change in custody.
Second, the trial court's order included several pages
discussing in detail the effects of Tina's relocation to Minnesota
as to the minor child. For example, the trial court found that
Ryan has many extended family members on both sides of the family,
maternal and paternal, that live in or near Wake County, as well as
other extended family members. The court noted that Ryan sees many
of these extended family members on a regular and frequent basis
and has close relationships with many cousins who are near his age.
None of the extended family members of either party lives in or
near Minnesota. In addition, the trial court found that Tina's
relocation has had and will continue to have an effect on the minor
child because it will be impossible for the current custodial
schedule, which allows for the minor child to have frequent
visitation with Douglas, to continue with the relocation. In
addition, the trial court found that this change of circumstances
will further affect the minor child because he has enjoyed a close
relationship with both parents and has been seeing Douglas on a
regular basis for his entire life. The court stated that it was in
Ryan's best interest that he continue to spend as much time as
possible with each parent, to maintain his relationships withextended family members, and to minimize his travel between North
Carolina and Minnesota, particularly during the school year. Tina
did not assign error to any of the trial court's findings of fact,
and thus, they are binding on appeal. They support the trial
court's conclusion of law that there has been a substantial change
in circumstances affecting the welfare of Ryan.
Tina contends the trial court abused its discretion in
ordering Ryan's primary custody to be changed to Douglas and by
granting Douglas the ability to select a home in North Carolina for
Tina to exercise visitation with the minor child. We disagree.
Where the trial court concludes that a
substantial change in circumstances has
occurred affecting the welfare of the child
and that custody modification was in the best
interest of the child, we defer to the trial
court's judgment, and will not overturn it,
absent a clear showing of abuse of discretion.
Karger v. Wood
, 174 N.C. App. 703, 708, 622 S.E.2d 197, 201 (2005).
We have already determined that the trial court did not err in
concluding that a substantial change of circumstances occurred
affecting the welfare of Ryan.
Regarding the issue of the housing option provided by Douglas
for Tina's use during her visits within North Carolina with Ryan,
Tina failed to show the trial court abused its discretion. During
the hearing, both parties offered to purchase a town home where he
or she lived so that the other parent would have a home in which to
visit Ryan. The trial court ordered that Douglas purchase a town
home or condominium for Tina's use, rent free, as her secondaryresidence when visiting with Ryan while in North Carolina. The
order provided that the rent-free lease between the parties could
be terminated by Douglas upon Tina establishing her own residence
within 50 miles of Wake County or if Tina did not utilize the
secondary residence when she visited with Ryan for a period of 90
days or more without good cause or if she failed to use the
secondary residence for visitation with Ryan for at least 25% of
the time available to her without good cause. Nothing in the trial
court's order mandated that Tina use the residence provided by
Douglas, but only mandated that it be provided.
Chief Judge MARTIN and Judge TYSON concur.
Report per Rule 30(e).
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